DR CHARLES KWAME ADOFO (PLAINTIFF) vs. ESICH LIFE ASSURANCE COMPANY LTD. SUBSTITUTED BY (DEFENDANTS) DANIEL AIDOO MENSAH (THE ADMINISTRATOR) AND NATIONAL INSURANCE COMMISSION [2019]DLHC6877

DR CHARLES KWAME ADOFO (PLAINTIFF) vs. ESICH LIFE ASSURANCE COMPANY LTD. SUBSTIT... [2019]DLHC6877

Date	2019-05-20
Suit No.	SUIT NO. OCC 02/2019
Citation No.	[2019]DLHC6877

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

JOHN F. APPIAH FOR THE DEFENDANT/APPLICANT

EBENEZER ADJEI BEDIAKO FOR THE PLAINTIFF/RESPONDENT

[2019]DLHC6877
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >DR CHARLES KWAME ADOFO<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ESICH LIFE ASSURANCE COMPANY LTD. SUBSTITUTED BY (DEFENDANTS)&nbsp;&nbsp;&nbsp;&nbsp; DANIEL AIDOO MENSAH (THE ADMINISTRATOR) AND NATIONAL
INSURANCE COMMISSION<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>COUNSEL:<o:p></o:p>JOHN
F. APPIAH FOR THE DEFENDANT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

EBENEZER
ADJEI BEDIAKO FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE DR. RICHMOND
OSEI-HWERE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On
30th April, 2019 leave was granted to Daniel Aidoo Mensah, the
applicant herein (who described himself as the Administrator/Judicial Manager
of Esich Life Assurance Company Ltd., the 1st defendant therein) to
substitute Esich Life Assurance Company Ltd. In the motion on notice for
substitution, the applicant also prayed the court to set aside all court
processes subsequent to the protection order that led to his appointment as the
so called Administrator/Judicial Manager. The matter was adjourned for the
court to hear legal arguments relating to the application to set aside all
court processes particularly the garnishee order made subsequent to the
appointment of Daniel Aidoo Mensah.<o:p></o:p>Counsel
for the applicant argued that upon an application by the National Insurance
Commission, the applicant was appointed as the Judicial Manager/Administrator
of Esich Life Assurance by the High Court differently constituted under section
99 of the Insurance Act, 2006 (Act 724). That, an order of protection was made
on 25thJanuary, 2019 and the applicant was subsequently appointed by
the court on 12th February, 2019. Counsel submitted that per section
101 of Act 724 when a judicial management order is in force all proceedings,
execution or other legal processes shall not be commenced or continued against
the insurer or its assets. Thus, the garnishee order made on 22nd
February, 2019 is invalid, as the court had already appointed the applicant. He
invited the court to set aside the garnishee nissi order and halt the execution
process against Esich Life Assurance (now substituted by the applicant herein).<o:p></o:p>In
a rebuttal to the submissions of counsel for the applicant, counsel for the
plaintiff/respondent (hereinafter called the respondent) submitted that the applicant
was appointed under section 180 of Act 724 and not section 99. He submitted
that per the applicant’s own showing in Exhibit DAM2, he was appointed as an
administrator and that the import of section 180 is that if you apply for a
protection order you are appointed as an administrator and not a judicial
manager. That, a judicial management order is governed by section 99 of Act
724. He submitted that section 92 of Act 724 also allows the National Insurance
Commission to apply to the court for liquidation of an Insurance Company and
that per section 6 of Bodies Corporate (Official Liquidations) Act, 1963 (Act
180) there is an automatic stay of proceedings when a liquidator is appointed
for companies in general. However, section 92 of Act 724 has modified the
general position relating to liquidation of companies such that stay of
proceedings does not apply to liquidation of insurance companies. He also
submitted that per section 180 of Act 724 appointment of an administrator does
not automatically stay proceedings nor halt an execution process. He invited
the court to dismiss the application to halt the garnishee proceeding.<o:p></o:p>The
Insurance Act, 2006 (Act 724) was enacted to provide comprehensive provisions
for the regulation of the insurance industry and for related matters.<o:p></o:p>Section
99(1) of Act 724 makes provision for an appointment of a judicial manager to
manage the affairs of an insurance company (insurer) under distress upon an
application made by the insurance company or the National Insurance Commission
(NIC) under section 100 of the Act. The judicial manager shall operate under
the conditions spelt out under section 101 of Act 724 as follows:<o:p></o:p>“During the period in which a judicial
management order is in force in respect of an insurer except with the leave of
the Court or with the consent of the judicial manager<o:p></o:p>(a) steps shall not be taken to
enforce any security over the insurer's assets,<o:p></o:p>(b) steps shall not be taken to
repossess assets that are being used or occupied by or are in the possession of
the insurer <o:p></o:p>(c) proceedings. execution or other
legal process shall not be commenced or continued or distress the against the
insurer or its assets,<o:p></o:p>(d) a share shall not be transferred
and an alteration shall not be made in the status of the members of the
insurer, whether by an amendment of the memorandum or articles or any
shareholders' or members' agreement or otherwise,
and<o:p></o:p>